ECtHR’s decision and the cases against Ergenekon by Atilla Yayla*

Recent developments and debates surrounding the National Intelligence Organization (MİT) have overshadowed another equally important development:

The European Court of Human Rights (ECtHR) has issued an interim decision concerning an application filed by Tuncay Özkan, a defendant in the Ergenekon cases, a clandestine organization nested within the state trying to overthrow or manipulate the democratically elected government. As is known, some groups have continually voiced claims and complaints since the start of the cases against Ergenekon. They argue that the cases are illegitimate and unlawful, in terms of both the procedures and the facts. However, these cases are legitimate and lawful, as regards both the theory and practice of democracy and the rule of law. The above-mentioned decision by the Strasbourg court reaffirms this.

Obviously, the defamatory claims concerning the cases against Ergenekon and other similar cases are intended to elicit public sentiment against these cases, particularly in the US and the EU. There is nothing surprising in this. In Turkey, a country that claims to be part of the democratic world, this is what official and civilian forces did -- and are doing, in order to reinforce democracy -- by eliminating the tradition of coups and bureaucratic oppression in Turkey. As you might recall, the ruling Justice and Development Party (AKP) tried to maximize support from the EU for reforming the country’s legislation, particularly during its early years in office. The parties, groups and intellectuals who seek to maintain the status quo are now doing the same, though at the expense of contradicting themselves. For this reason, the ECtHR’s decision is of particular importance; the European court’s decisions are very influential in the EU and its periphery.

The main criticisms voiced concerning the cases against Ergenekon and similar cases can be summed up as follows: These cases are politically motivated and unlawful; they are designed to silence the opposition; they penalize not the offense, but the thought of it, i.e., thinking about overthrowing the government; arrests are arbitrary and detentions are so lengthy that those arrested are effectively punished; the professional positions or social statuses of the defendants are not taken into consideration; the trials proceed very slowly; some of the defendants don’t know the charges against them; and the very presence of specially authorized courts and prosecutors breaches the principle of the rule of law.

Looking at criticisms and complaints

These criticisms and complaints should be taken seriously and properly answered. I think this is already being done. But it has not been completely effective because these efforts have been fragmented and poorly advertised to the public. As they are not sufficiently informed about the history of Turkey and they don’t have well-balanced contacts in Turkey, foreign observers tend to make the wrong or misguided assessments about these matters. This applies even to liberals in the EU. They cannot get the gist of the cases against Ergenekon since they fail to monitor Turkey in depth, or since they communicate with people or institutions that are like extensions of the main opposition Republican People’s Party (CHP), although some of them use the appellation “liberal.” Consequently, they come up with statements or arguments that play into the hands of advocates of Ergenekon, knowingly or not.

If we take a look at these criticisms in light of the points stressed in the ECtHR decision, we see the following picture: It is clear that the cases have a political dimension. But there is nothing wrong with this, as this is essentially a politically motivated struggle. There are two political philosophies clashing. On the one hand is the democracy camp -- where the AKP is the leading political force, despite its flaws and contradictions -- which also includes other political and intellectual groups. And on the other hand is the status quo camp, which seeks to maintain the ancien régime as it is, although they occasionally make use of democracy and other related concepts. This case has to be conducted within a legal system mainly designed by the second camp.

This is still the case despite some recent loopholes that have been created in this system. This is why any political support to these trials is vitally important as it will reinforce the democratic political philosophy and help point the legal system towards democracy. The claim that the cases in question aim to silence opposition is unfounded. The fact that most of the defendants are also opponents of the AKP is the outcome of current conditions. Given the fact that all coup attempts during the last 10 years targeted the AKP, it is quite natural that these trials would be aimed at the opponents, not the proponents, of the AKP. But you can be sure that the same defendants would have opposed Adnan Menderes and Turgut Özal, had they been able to, as well as Süleyman Demirel, in the early years of his political career -- and some even did. Therefore, there are reasons galore to believe that most of the defendants are opponents of democracy, rather than the AKP.

Proving innocence vis-à-vis profession

And any attempt to prove the innocence of the defendants vis-à-vis their professions, prestige or statuses is contrary to the rule of law. No one can claim that journalists and physicians will not commit crimes. The tendency of the members of the military, whose past is fraught with coups and coup attempts to overthrow democratically elected governments, can be regarded more as a rule rather than an exception. Indeed, a discursive analysis of the remarks made by some defendants who are members of the military -- as well as some retired members of the military -- who pop up in media debates, would quickly reveal this fact. When a journalist declares that s/he thinks that the military may overthrow the democratically elected government, we may consider this as a simple expression of opinion. But we cannot be so tolerant with the journalists who closely work or collaborate with the military. And the members of the military must never talk about coups or hint about overthrowing the government. This is clearly an offense. The fact that the cases are being heard by specially authorized courts may lead to certain inconveniences, but this is not the sole source of controversy. Indeed, these crimes are unusual and the Turkish judiciary is inexperienced in dealing with them. No matter which court hears the coup attempt cases, similar complaints will be raised.

Is the evidence real or manufactured? It is up to the courts to decide. Even if I, as an ordinary citizen, believe that they are not forged or manufactured, the judges will still call the shots. The claim that some defendants don’t know the charges against them is essentially propaganda. Indeed, the ECtHR rejected this claim. The defendants are accused of being members of the network named Ergenekon, and of working for this network. We can even suggest that these trials are more democratic than the average conditions prevalent in Turkey. Until now, we have not heard complaints about torture, ill-treatment and restricted access to a proper defense. These are the chronic problems of our judicial system. The trials are proceeding at a speed not seen in any other case. And finally, there is the claim that arrests should not be a rule, but an exception, and that the duration of detentions should not be as lengthy as they eventually turn into punishments, in effect. There is already a social consensus that these are problems that must be settled at once.

The ECtHR’s interim decision reinforced the democratic legitimacy and legal basis of the Ergenekon trials. I hope this helps to quickly conclude these trials.